[136] This case illustrates first, the protection coming to be given by Chancery to villein or customary tenure, and second, the growing desire of lords to substitute leasehold for copyhold, a process which began at least as early as the beginning of the fourteenth century; see No. 7 above, and Part II., Section I.; cf. also Savine, in E.H.R. xvii., 296.
11. Statute of Merton, c. 4 [Statutes of the Realm, Vol. I, p. 2], 1235-6.
Also, because many great men of England, who have enfeoffed their knights and freeholders of small tenements in their great manors, have complained that they cannot make their profit of the residue of their manors, as of wastes, woods, and pastures, though the same feoffees have sufficient pasture, as much as belongs to their tenements: it is thus provided and granted, that when any persons so enfeoffed bring an assize of novel disseisin touching their common of pasture, and it is acknowledged before the justices that they have as much pasture as suffices for their tenements, and that they have free entry and issue from their tenements into their pasture, then they shall be content therewith; and they of whom they had complained shall go quit of the profit which they have made of the lands, wastes, woods, and pastures; and if they allege that they have not sufficient pasture, or sufficient entry and issue as belongs to their tenements, then the truth shall be inquired by assize; and if it be acknowledged by the assize that their entry or issue is in any way hindered by the same [deforcers] or that they have not sufficient pasture and sufficient entry and issue, as is aforesaid, then shall they recover their seisin by view of the jurors: so that by their discretion and oath, the plaintiffs shall have sufficient pasture and sufficient entry and issue in form aforesaid, and the disseisors shall be in the mercy of the lord the King, and shall yield damages, as they ought to have rendered before this provision. And if it be acknowledged by the assize that the plaintiffs have sufficient pasture with free and sufficient entry and issue, as is aforesaid, then the others may make their profit lawfully of the residue, and go quit of that assize.
12. An Enclosure Allowed [Bracton's Note-Book, III, 212, No. 1198], 1236-7.
The assize comes to recognise if Elias of Leyburn unjustly etc. disseised Wymar of Leyburn of common of his pasture pertaining to his free tenement in the same town of Leyburn after, etc.[137]
And Elias comes and says that an assize ought not to be made thereof because that pasture belonged to five lords, and a covenant was made between the lords that each should make his profit of his part, and by this covenant he caused his part to be tilled, and thereof he put himself on a jury.
The jurors say that the wood was at one time common, in such wise that there were five sharers who had the wood common, and afterwards by their consent a partition was made between them that each should have his part in severalty, and it was granted that each might assart[138] his part and grow corn, saving however to each of them common of herbage after the corn was carried, and most of them assarted their part, but the wood whereof complaint is made was not then assarted, and because he to whom the wood pertains has now assarted a part, the said Wymar has brought a writ of novel disseisin. But because it is acknowledged that the wood was thus partitioned among the sharers, it is decided that the aforesaid Elias has not disseised him, and so Elias is dismissed sine die and Wymar is in mercy. And it shall be lawful for each sharer to assart his wood, saving to each of them common of his pasture after the corn and hay is carried.
[137] sc. The King's last return from Brittany.
[138] Bring into cultivation.
13. An Enclosure Disallowed [Bracton's Note-Book, III, 211, No. 1196], 1236-7